Date: Mar 23, 2020
Magazine:
March April 2020

As a Western Growers member, you belong to a regional association with a national presence that prioritizes advocacy on public policy that directly affects you and your business. Western Growers members are well aware of the tremendous work that WG’s Government Affairs team does on behalf of the specialty crop industry. They work tirelessly before legislative bodies and regulatory agencies to advance the association’s policy priorities on the state and federal level.

However, you may not know about the advocacy that Western Growers’ Legal team undertakes, typically in collaboration with outside counsel and association partners, on important cases being litigated in state and federal courts of appeal. Sometimes that advocacy takes the form of Western Growers intervening as a party to the litigation if we have legal “standing” to do so. More often, we appear as amicus curiae—or a “friend of the court”—to educate the court about the importance of the issues before it to the agricultural industry and to persuade the court to rule in a way that will help, or at least not harm, ag interests. As amicus, we are in a unique position to give the court additional information and perspectives that the parties alone cannot muster due to strict briefing page limits, or being confined to the evidence contained in the trial court’s “record,” or other limitations inherent in appellate procedure.

Employment and Labor Litigation

As you might expect, Western Growers has been active on the employment and labor front of litigation over the years. In fact, Western Growers has filed amicus briefs in many seminal employment and labor law cases decided by the California Supreme Court, including the landmark decisions in Brinker Restaurant Corp. v. Superior Court (clarifying an employer’s duty to provide meal and rest breaks); S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (creating the multi-factor or economic realities test for determining if a worker is an employee or an independent contractor); and Martinez v. Combs (clarifying the term “employer” and who may be liable in an action to recover unpaid minimum wages).

WG also filed an amicus brief in Hess Collection Winery v. Agricultural Labor Relations Board, the first case to challenge the constitutionality of mandatory interest arbitration (aka “mandatory mediation and conciliation” or “MMC”) between agricultural employers and workers under California Labor Code section 1164.

Nearly 10 years later, Western Growers, joined by California Farm Bureau Federation and Ventura County Agricultural Association, took another crack at the MMC statute, in Gerawan Farming, Inc. v. Agricultural Labor Relations Board. In Gerawan, the United Farm Workers Union was certified as the employees’ bargaining representative in 1992, but after engaging in initial discussions with Gerawan, disappeared from the scene for nearly two decades.

In late 2012, UFW returned and both parties renewed negotiations. A few months later, at UFW’s request, the ALRB ordered the parties to engage in the MMC process. Gerawan challenged the validity of the MMC on both statutory and constitutional grounds and further contended that UFW abandoned the workers and its status as the employees’ bargaining representative as a result of the UFW’s lengthy absence. Western Growers’ amicus brief supported these arguments, and the court of appeal agreed that the MMC statute violated equal protection policies. The court also agreed with Gerawan’s abandonment argument. Finally, the court also expressly agreed with the arguments raised in our amicus brief, concluding that the MMC process constitutes an improper delegation of legislative authority.

However, the UFW sought, and the California Supreme Court granted, review of the lower court’s decision. Once again, we filed an amicus brief in support of the industry. Unfortunately, the California Supreme Court unanimously reversed the lower court’s ruling, holding that the MMC statute is constitutional and statutorily valid, and that an employer may not defend against a union’s MMC request by challenging the union’s certification as bargaining representative on the basis of abandonment.

In yet another chapter in the Gerawan v. ALRB litigation saga, Western Growers and industry partners filed an amicus brief in a case challenging an ALRB ruling which upheld an administrative law judge’s decision that a 2013 petition by a group of Gerawan workers to oust the UFW union was tainted by what the ALJ deemed to be unlawful speech by the employer. The Order found the results of the decertification election held in November 2013 to be invalid.

The brief argued, and the court agreed, that Dan Gerawan’s statements supporting the workers who petitioned the government for a decertification election and for the right to have their ballots counted were protected by the First Amendment’s right to free speech, as well as other First Amendment related arguments. In a unanimous 138-page opinion, the Fifth District Court of Appeal vacated the ALRB’s decision to dismiss the decertification petition and set aside the election of the workers and directed the Board to tally the workers’ ballots that it ordered impounded over four years earlier. Five years after that decertification election, Gerawan‘s employees’ ballots were finally counted, with the result being a resounding vote to oust the union.

Environmental Litigation

Western Growers does not only engage in employment and labor cases; we have advocated on behalf of members in water and other environmental litigation as well. We are engaged in numerous contentious legal battles to defend water quality control board waivers of discharge requirements for irrigated agricultural operations. For example, Western Growers, along with the California Farm Bureau Federation and Grower-Shipper associations, has intervened in several cases filed by Monterey Coastkeeper and other environmental advocates against the State Water Resources Control Board. In two of these cases, Monterey Coastkeeper challenged the order issued by the Central Coast Regional Water Quality Control Board waiving the discharge requirements for irrigated ag operations in the region. As interveners, we were able to secure a partial win on behalf of the industry. Western Growers has also intervened in yet another case brought by Monterey Coastkeeper, this one challenging the Eastern San Joaquin Watershed discharge permit, which is just getting underway.

Last September, Western Growers and a coalition of agricultural associations filed a writ petition challenging the California Fish and Game Commission’s decision to grant candidacy status to four subspecies of bumble bees under the California Endangered Species Act (CESA). The petition contends that insects are not eligible for listing under CESA. Importantly, the California Attorney General’s Office and the California Office of Administrative Law and Department of Fish and Wildlife, also separately concluded that insects cannot be listed.

The environmental groups petitioning for listing the species are asking for changes to a number of agricultural activities to protect the bumble bees. They want:

·    Grazing reduced, which could lead to increased wildfire risk;

·    Pesticide and herbicide use restricted;

·    Limits put on where honeybee hives can be placed, which will reduce the available food for honeybees; and

·    Restrictions placed on the use of bumble bees for commercial pollination.

Since honeybees are responsible for nearly half of California’s agricultural production (both directly and indirectly), placing restrictions on their access to forage, is likely to have broad adverse impacts throughout California’s agricultural economy. The listing is also unnecessary, as farmers have made significant investments in efforts to improve habitat for pollinators, such as planting hedgerows to provide habitat and implementing best management practices to reduce impacts from pesticide use.

If the listing is allowed to stand, you can be sure that the floodgates to list additional insects will quickly open up. Unlike the U.S. Fish and Wildlife Service which carefully vets petitions to list and regularly rejects those petitions as being without merit, the California Fish and Game Commission grants the vast majority of petitions to list that it receives.

Western Growers has also appeared as amicus in multiple cases challenging administrative agency decisions listing or banning important crop protection tools. Recently, Western Growers joined industry partners in a bid to petition the California Supreme Court to review the Office of Environmental Health & Hazard Assessment’s (“OEHHA”) decision to list trizines (including herbicides atrazine, propazine and simazine) under Proposition 65 without adhering to regulatory requirements. The California Court of Appeal had upheld OEHHA’s findings. The California Supreme Court ultimately denied review in the case.

This is just a sampling of the advocacy on the legal front that Western Growers is conducting on behalf of the fresh produce industry. I hope you were already aware of Western Growers’ commitment to legal advocacy, but if you weren’t, I hope you are encouraged by WG’s commitment to you—our members.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel
949-885-2253

Join Western Growers

Western Growers members care deeply for the food they grow, the land they sustain, the people they employ, and the community in which they live. 

You May Also Like…